TAMPERING
WITH WITNESSES AND INFORMANTS
(N.J.S.A.
2C:28-5a)model jury charge
The indictment charges defendant in
Count(s) __________ with Tampering with Witnesses [Informants] in violation of
a statute that reads as follows:
a. Tampering. A person commits an offense if, believing
that an official proceeding or investigation is pending or about to be
instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a [witness] [informant] to: (choose applicable section)
(1) Testify or inform falsely;
(2) Withhold any testimony, information,
document or thing;
(3) Elude legal process summoning him to
testify or supply evidence;
(4) Absent
himself from any proceeding or investigation to which he has been legally
summoned;
OR
(5) Otherwise obstruct, delay, prevent or
impede an official proceeding or
investigation.
In order
for you to find defendant guilty of violating this statute, the State must
prove beyond a reasonable doubt each and every one of the following elements:
(1) that defendant
believed that an official proceeding or investigation was pending or about to
be instituted or has been instituted; and
(2) that defendant
knowingly engaged in conduct which a reasonable person would believe would
cause a witness or informant to:
[INSERT APPROPRIATE SECTION]
(1) Testify or inform falsely;
(2) Withhold any testimony, information,
document or thing;
(3) Elude legal process summoning him/her to testify
or supply evidence;
(4) Absent himself/herself from any
proceeding or investigation to which he/she had been
legally summoned;
OR
(5) Otherwise obstruct, delay, prevent or
impede an official proceeding or investigation.
The first element that the State
must prove beyond a reasonable doubt is that defendant believed that an
official proceeding or investigation was pending or about to be instituted or
had been instituted. This means that the
State must prove beyond a reasonable doubt that defendant knew of an official
proceeding or that an investigation was pending or that an investigation had
been instituted or was aware of facts that would lead a reasonable person to
believe that an official action was pending or about to be instituted or had
been instituted.[1] "Official proceeding" is defined
as:
A proceeding heard or which
may be heard before any legislative, judicial, administrative or other
governmental agency or official authorized to take evidence under oath, including
any referee, hearing examiner, commissioner, notary or other person taking
testimony or deposition in connection with any such proceedings.
The second element that the State
must prove beyond a reasonable doubt is that
defendant knowingly engaged
in conduct that a reasonable person would believe would cause a [witness] [informant] to:
[INSERT APPROPRIATE SECTION]
(1) Testify or inform falsely;
(2) Withhold any testimony, information,
document or thing;
(3) Elude legal process summoning him/her to testify
or supply evidence; or
(4) Absent himself/herself from any
proceeding or investigation to which he/she had been
legally summoned;
OR
(5) Otherwise obstruct, delay, prevent or
impede an official proceeding or investigation.
A person acts knowingly with respect
to the nature of his/her conduct or the attendant circumstances if he/she is aware
that his/her conduct is of that nature, or that such circumstances
exist, or he/she is aware
of a high probability of their existence. [A person acts knowingly with respect
to a result of his/her conduct if he/she is aware
that it is practically certain that his/her conduct will cause such a result].[2] "Knowingly," "with
knowledge" or equivalent terms have the same meaning.
Knowledge is a condition of the mind
that cannot be seen and can only be determined by inferences drawn from the
defendant's conduct, words or acts. It
is not necessary for the State to prove the existence of such a mental state by
direct evidence such as a statement by the defendant that he/she had a
particular knowledge. It is within the
power of the jury to find that the proof of knowledge has been furnished beyond
a reasonable doubt by inferences which you may draw from the nature of the acts
and circumstances surrounding the conduct of the defendant as they have been
presented in the evidence you have heard and seen in this case.
[CHARGE IN ALL CASES]
If the State has failed to prove any
one or more of the elements as I have described them to you beyond a reasonable
doubt, you must find defendant not guilty of tampering with [witnesses]
[informants]. If the State has proven
every element beyond a reasonable doubt, you must find defendant guilty of the
crime of tampering with [witnesses] [informants].
(If the State alleges that the crime
involved the second degree offense, charge the following:)
Our statute provides that Tampering with
[a Witness][an Informant]is a crime of the third degree, except that it is a
crime of the second degree if the actor employed force or the threat of force.
If you find that the State has proven
defendant guilty beyond a reasonable doubt of this crime, then you must
determine whether or not the State has proven beyond a reasonable doubt that
defendant employed force or threat of force.
"Force" means any degree of physical power or strength used
against another person, even though it entails no pain or bodily harm and
leaves no mark.[3] "Threat of force" means that the
words or actions of the defendant must be of such a nature as to convey menace
or fear of force to the ordinary person. The State contends that defendant
(describe force or threat of force alleged).
If you find that the State has
proven beyond a reasonable doubt that defendant employed force or threat of
force, then you must find him/her guilty of
Tampering with [a Witness][an Informant] in the second degree. If, on the other hand, you find that the State
has failed to prove this element beyond a reasonable doubt, you must find him/her not guilty
of Tampering with [a Witness][an Informant] in the second degree.
(If the State alleges that the crime involved the
first degree offense, charge the following:)
Our statute provides that
Tampering with [a Witness][an Informant] is a crime of the second degree if the
actor employed force or the threat of force. It is a crime of the first degree if the actor employed force
or the threat of force, and the conduct occurred during an official proceeding
or investigation involving a crime enumerated in a portion of our statutes
codified at N.J.S.A. 2C:43-7.2.
If you find that the State has
proven defendant guilty beyond a reasonable doubt of tampering with [a
Witness][an Informant], then you must determine whether or not the State has
proven beyond a reasonable doubt that the defendant employed force or threat of
force. "Force" means any
degree of physical power or strength used against another person, even though
it entails no pain or bodily harm and leaves no mark.[4] "Threat of force" means that the
words or actions of the defendant must be of such a nature as to convey menace
or fear of force to the ordinary person. The State contends that defendant (describe
force or threat of force alleged).
If you find that the State has
proven defendant guilty beyond a reasonable doubt of tampering with [a Witness]
[an Informant] and that he/she employed
force or the threat of force, then you must find him/her guilty of
Tampering with [a Witness][an Informant] in the second degree. You must then
determine whether or not the State has proven beyond a reasonable doubt that defendant’s conduct occurred in connection
with an official proceeding or investigation involving a crime[s] enumerated in a portion of our
statutes codified at N.J.S.A.
2C:43-7.2.[5]
The State contends that defendant’s conduct occurred in connection with an
official proceeding or investigation involving the crime(s) of [INSERT ENUMERATED CRIME AS ALLEGED].
I have already defined “official
proceeding” for you earlier. [6]
Under the law of New Jersey, [INSERT ALLEGED ENUMERATED CRIME] is a
crime enumerated in N.J.S.A. 2C:43-7.2.[7]
If you find that the State has
proven beyond a reasonable doubt that defendant is guilty of tampering with [a
Witness] [an Informant] and employed force or threat of force, then you must
find him/her guilty of
Tampering with a [Witness][Informant] in the second degree. If, on the other hand, you find that the State
has failed to prove beyond a reasonable doubt that defendant employed force or
threat of force, then you must find him/her not guilty
of Tampering with [a Witness][an Informant] in the second degree.
If, however, you find that defendant
is guilty of Tampering with [a Witness][an Informant] and that he/she employed
force or the threat of force, and the State has proven beyond a reasonable
doubt that defendant’s conduct occurred in connection with an official
proceeding or investigation involving the enumerated crime alleged, you must
find him/her guilty of
Tampering with a [Witness][Informant] in the first degree. If, however, you find that the State has not
proven beyond a reasonable doubt that the actor employed force or the threat of
force, and conduct occurred in connection with an official proceeding or
investigation involving a crime enumerated in N.J.S.A. 2C:43-7.2, then
you must find him/her not guilty
of Tampering with [a Witness][ an Informant] in the first degree.
[2] In State v. Speth, 323 N.J.
Super. 67, 87 (App. Div. 1999), the Court held that the "practically
certain" portion of the definition of knowledge "is not an element of
the offense and is incompatible with the crime of witness tampering, as it
would put undue weight on whether or not defendant's attempt was likely to
succeed." But see the next footnote.
[3] See Model Charge, N.J.S.A.
2C:15-1, Robbery in Second Degree and Model Charge, N.J.S.A. 2C:29-5, Escape; State v. Brannon, 178 N.J.
500, 510 (2004).
[4] See Model Charge, N.J.S.A.
2C:15-1, Robbery in Second Degree and Model Charge, N.J.S.A. 2C:29-5, Escape; State v. Brannon, 178 N.J. 500,
510 (2004).
[6] One
issue that may arise in a prosecution under this section is whether the State
has to prove beyond a reasonable doubt that the defendant knew that the
proceeding or investigation of his/her conduct pertains to any of the offenses
enumerated in N.J.S.A. 2C:43-7.2 (the No Early Release Act [NERA]). The Committee is divided on the answer to
this question, and there is as yet no caselaw that addresses this issue that is
directly applicable to this statute.
Compare State v. Thomas, 187 N.J. 119, 137-138 (2006) with
State v. Sherman, 367 N.J. Super. 324, 350-356 (App. Div. 2004),
certif. denied 180 N.J. 356 (2004).
[7] If the nature of the underlying
investigation is disputed, the jury should be instructed as to the elements of
the enumerated crime in the Model Jury Charges. The State would have to prove
the nature of the criminal investigation beyond a reasonable doubt.
